Beruflich Dokumente
Kultur Dokumente
No. 15-2144
Appellee,
v.
MARK J. ZIMNY,
Defendant, Appellant.
Before
of filing false tax returns, and one count of bank fraud. Zimny
leaving for another day the other issues that Zimny raises.
Background
A. The Scheme
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Zimny approached Gerald Chow (Gerald), who lived in Hong Kong with
his wife, Lily. Zimny explained that Ivy Admit assists Asian
studied in the United States; Zimny was tasked with acting as their
that Ivy Admit offered. What made Ivy Admit truly valuable, Zimny
simply cut the school a check that looks way too fishy. Instead,
intermediary that the school knows. Zimny assured Gerald that Ivy
Chow children. Each time, the Chows complied, wiring the money to
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about the size of the payment requested and the possibility that
the schools might deny one son's applications; Zimny assured the
be in Hong Kong. Gerald met with her, and, when he asked whether
the school had received the Chows' donation from Zimny, she
refund the money and advised the Chows that, given the sensitive
nature of some of the work that Ivy Admit performed for them, it
would be best not to pursue the matter further "to ensure privacy
for all in the United States and Hong Kong." The Chows thought
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B. The Criminal Trial
trial before a jury. After the jury was impaneled, the district
the jury on the twelfth day of trial to avoid any media coverage
of the case. As far as we can tell, this is the only time that
the case based on the evidence that has been presented" and that
"[a]nything you may have heard outside the courtroom about this
involved.
3
Given the tack we take in this opinion, we need not chronicle
the facts giving rise to the false-tax-return and bank-fraud
charges or examine the degree to which these offenses are connected
with the other ten counts.
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On several occasions during trial, one or more jurors
did not show up to the courthouse. On the fourth trial day, Juror
counsel, the district court elected to recess the trial until the
this time due to sickness, and the court again recessed for the
day. The court and the parties agreed that, if Juror No. 8 was
absent again the following day, an alternate juror would take her
place. The next morning, Juror No. 8 was absent again, and, as
where Zimny stood trial. Before, during, and after this criminal
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the vast majority of which were posted anonymously, from
immediately after the blog entry was posted, and they continued to
4At the time Zimny filed his motion for a new trial, the blog
post garnered over 250 comments. As of this date, over 300
comments have been posted. See Richard Bradley, The Harvard
Admissions Lawsuit, Shots in the Dark (Oct. 9, 2012),
http://www.richardbradley.net/shotsinthedark/2012/10/09/the-
harvard-admissions-lawsuit/ (last visited Jan. 23, 2017).
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he can. He especially likes to victimize Asian people
whether through scams, contrived lawsuits or
womanizing."
"No punishment is too great for this disgusting piece of
shit."
"Feds don't bother to indict unless they're pretty sure
of getting somewhere with the charges . . . . It's like
[Zimny] can't NOT be dishonest. Never stops lying, and
never stops attempting to cheat and steal from people
who believe the lies."
"I honestly cannot find one redeeming quality in Zimny.
He is a wretched human being . . . . Must feel terrible
to be the parents of a human horror like him."
"The worst part is that now we, the taxpayers, will have
to pay to house/feed this miserable piece of shit on a
[sic] prison. Hopefully, he'll rot away quickly."
"Zimny is that 1% of the 1% of sociopaths completely
devoid of empathy and conscience. Just an insatiable
black-eyed shark ceaselessly on the hunt for victims. I
feel sorry for his parents. There's no way in hell Zimny
is a bi-product [sic] of some childhood wounds. He's a
genetic defect."
"I have no doubt that any jury with an IQ above body
temperature will convict Zimhole. I only fear that his
defense undoubtedly tried to seat as many morons as
possible in order to confuse them . . . ."
author of the blog post threatened to delete the post and the
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response to comments requesting status updates on the trial, an
the judge has hoped dude [sic] to Lily Chows [sic] testimony. When
I left the jury last week due to an illness they were 50/50." When
under oath, that she had not visited the blog or read anything
else about the case during her jury service; it was only after
she left the jury that she had found the blog. Juror No. 8 also
testified that she had not discussed the case with any of the other
jurors while she was serving on the jury. Her assessment of the
jurors that half saw Zimny guilty and the other half viewed him
of "the way that [the jurors] would sigh on certain things" and
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had not authored any of the other comments on the blog post. After
court to ask the juror; Zimny took the district court up on this
testimony, Zimny requested that the court examine the other jurors;
the court denied that request, concluding that Juror No. 8's
based on a comment that was posted after Zimny filed his motion
for a new trial but before the hearing at which Juror No. 8 was
that the other jurors thought Zimny was guilty[,] then Juror #8
will be sent home with the court's thanks." Zimny argued that,
the blog post shortly before her testimony, the similarity between
another anonymous comment on the blog post; this comment had been
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posted earlier that day by someone who claimed to have been a juror
8's in-court testimony, she in fact had discussed the blog with
Analysis
5 For those, like us, who weren't there, Zimny explains that
"Mama June" is the name of a character from the reality show Here
Comes Honey Boo Boo and asserts that Juror No. 8 bore a striking
resemblance to this character. The government does not dispute
this assertion.
6 For those unfamiliar with the term, "stfu" is an acronym
for a particularly emphatic way to tell someone to be quiet: "Shut
the f*** up!" See Stfu, Urban Dictionary,
http://www.urbandictionary.com/define.php?term=stfu (last visited
Jan. 23, 2017).
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and that the jurors engaged in premature deliberations. We
Mikutowicz, 365 F.3d at 75; see also Rodriguez, 675 F.3d at 58.
original) (quoting United States v. Moon, 718 F.2d 1210, 1234 (2d
Paniagua-Ramos, 251 F.3d 242, 250 (1st Cir. 2001); see also United
251 F.3d at 250; United States v. DeLeon, 187 F.3d 60, 67 (1st
Cir. 1999); United States v. Rogers, 121 F.3d 12, 17 (1st Cir.
1997); United States v. Meader, 118 F.3d 876, 880 (1st Cir. 1997);
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United States v. Boylan, 898 F.2d 230, 258 (1st Cir. 1990); Neron,
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something untoward had occurred?" Paniagua-Ramos, 251 F.3d at
249-50.
Ramirez, 519 F.3d 76, 87 (1st Cir. 2008). In the last analysis,
always case-specific.").
not come before the district court all at once. Initially, Zimny
persuade the district court that, because Juror No. 8's testimony
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court, we first review the adequacy of the district court's
inquiry.
discussed the case with her fellow jurors. When Juror No. 8
steadfastly responded that she had not done so, the district court
the blog post and its comments during trial. Juror No. 8
repeatedly assured the court that she had not known of or visited
the blog until after she had left the jury and that she discovered
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the blog not through discussions with other jurors but by
from the front-row seat that the district court occupied, the judge
concluded that she did "not believe [Juror No. 8's] testimony
required based on Juror No. 8's testimony was the conclusion that
she believed Juror No. 8, who testified under oath, that (1) no
(2) she did not expose the other jurors to the blog-post comments
because she discovered the blog post only after she left the jury.
Cf. United States v. Newman, 982 F.2d 665, 670 (1st Cir. 1992)
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credibility determination, which was reached after an extensive
need not dwell on this point because we can affirm the district
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court's denial of this aspect of the motion for reconsideration on
Siciliano, 578 F.3d 61, 73 n.7 (1st Cir. 2009); cf. United States
v. Connolly, 504 F.3d 206, 212 (1st Cir. 2007) (explaining that,
"[w]hen the trial court has not expounded its rationale, the court
of appeals will peruse the record, identify the issues and the
controlling legal rules, and review the denial of the motion [for
testified. And Zimny knew about the blog post before these
v. Allen, 573 F.3d 42, 53 (1st Cir. 2009) (explaining that "[w]e
discretion" and that such motions "are not to be used as 'a vehicle
for a party to undo its own procedural failures [or] allow a party
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the district court prior to judgment'" and "are appropriate only
contrary to Juror No. 8's testimony, she discussed the blog post
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First, Zimny has made a colorable showing that the author
of this comment was a juror on his trial. Not only did the author
No. 8's appearance that was evidently right on the money. See
Juror No. 8 did not complete her jury service because of a claimed
the author of this comment was someone who was both in the
Zimny's trial.11
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Second, Zimny has shown a colorable claim that serious
one." Moreover, Juror No. 8's alleged references to the blog were
comment therefore indicates that Juror No. 8 told her fellow jurors
author was a juror and the comment's assertion that Juror No. 8
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comment constituted clear, strong evidence that a specific,
misconduct).
776 F.2d 989, 999 (11th Cir. 1985), in which the court stated that
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the additional-juror comment relieved the district court of its
even stronger basis for investigation than Juror No. 8's comments
did. Juror No. 8's comments stated that half of the jurors saw
Zimny as guilty while the other half did not, but those comments
on two occasions and concluding that she was credible and could
not claim to be a juror and refused to give his name to the judge,
reported that a juror's fianc told the caller that the fianc had
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Id. at 994. In this case, by contrast, the anonymous comment was
the vast majority of the other comments on the blog post were
government has not cited (and we have not found) any federal
this where the defendant has come forward with evidence of juror
source was a juror and (2) suggests, based on the source's personal
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was under no duty to investigate the "de minimis" "mention of the
Juror No. 8 "was spouting about" the blog "since day one." This
juror comment alone that "the jurors stopped Juror No. 8 from
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all others involving "claims of jury taint," is "case-specific."
additional-juror comment.
C. Remedy
States v. Rhodes, 556 F.2d 599, 601-02 (1st Cir. 1977), we held
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that the district court's inquiry into allegations of juror
because so much time has gone by since the discharge of the jury,
we feel it would be best for the court to set aside the verdicts
695 (3d Cir. 1993) (electing to order new trial, in lieu of remand
O'Brien, 972 F.2d 12, 14 (1st Cir. 1992)). In this case, however,
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the juror-misconduct allegation contained in the additional-juror
See United States v. Bristol-Mrtir, 570 F.3d 29, 41-42 n.5 (1st
Cir. 2009).
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the defendants' convictions and remanded for a new trial, id. at
45.
misconduct.
a new trial. See, e.g., United States v. Vitale, 459 F.3d 190,
199-200 (2d Cir. 2006); United States v. Brande, 329 F.3d 1173,
1177 (9th Cir. 2003); United States v. Tucker, 137 F.3d 1016, 1031-
33 (8th Cir. 1998); United States v. Brantley, 733 F.2d 1429, 1440-
13
In an analogous context, we employed this approach in
Villar, 586 F.3d at 78-79, 87, which involved an allegation of
juror misconduct that the district court did not investigate based
on its mistaken belief that it completely lacked authority, by
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In this case, a remand for further investigation is
alleged juror misconduct did not occur in the first place. For
memories may have faded in the time since they returned their
verdict, see Resko, 3 F.3d at 695; Rhodes, 556 F.2d at 602, this
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"spouting about" the blog "since day one," and (3) that "[s]everal
other jurors" were so "annoyed" by Juror No. 8's conduct that they
readily reveal whether memories have faded, and, if they have, the
Rhodes, 556 F.2d at 602. But we will not presume on this record
Conclusion
States v. Ortiz-Arrigoitia, 996 F.2d 436, 443 (1st Cir. 1993) ("The
[of] rules and procedures that compel any particular form or scope
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the allegation and gauging its effects, and thereafter spells out
955, 961 (1st Cir. 1989))); cf. Rogers, 121 F.3d at 15, 17 (finding
and the remaining issues that Zimny has raised on appeal. See
event that the district court orders a new trial and the government
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consolidate the government's appeal with this case and proceed
court. Counsel for both parties shall notify this court after the
REMANDED.
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